Pichardo v. Centene Co. of Tex., L.P.
| Decision Date | 16 March 2020 |
| Docket Number | CIVIL ACTION NO. 7:19-cv-00085 |
| Parties | JESSICA PICHARDO, Plaintiff, v. CENTENE COMPANY OF TEXAS, L.P., Defendant. |
| Court | U.S. District Court — Southern District of Texas |
The Court now considers "Defendant's 12(b)(6) Motion to Dismiss,"1 "Defendant's Motion for Ruling on Motion to Dismiss,"2 "Plaintiff [sic] Unopposed Motion to Extend Time to File Plaintiff's Response to Defendant's 12(b)(6) Motion to Dismiss and Opposed Motion for Leave to File Plaintiff's Second Amended Original Complaint,"3 "Defendant's Response to Plaintiff's Opposed Motion for Leave to File Plaintiff's Second Amended Original Complaint,"4 and "Defendant's Reply to Plaintiff's Response to Defendant's 12(b)(6) Motion to Dismiss."5 After considering the motion, record, and relevant authorities, the Court GRANTS Defendant's motion to dismiss in full and DISMISSES WITH PREJUDICE Plaintiff's claims. Additionally, the Court DENIES Plaintiff's motion for leave to file an amended complaint.
This is an employment discrimination case. Plaintiff Jessica Pichardo was employed as a nurse service coordinator with Defendant Centene Company of Texas, L.P., from January 25,2016, to December 29, 2017.6 After reporting allegedly unwelcome touching and inappropriate conduct by her supervisor, who elected to resign after the conclusion of a human resources investigation, Plaintiff alleges she was subjected to discriminatory treatment on the basis of her gender, harassment, and a hostile work environment.7 Plaintiff alleges she was belittled by senior management, denied a promotion for which she was qualified, and that Defendant permitted its supervisor to discriminate and retaliate against Plaintiff.8 Plaintiff also claims "pregnancy discrimination" but does not allege that Plaintiff was ever pregnant.9 Plaintiff filed a charge of discrimination with the Texas Workforce Commission Civil Rights Division on or about June 29, 2018,10 and received a Notice of Right to Sue on or about March 21, 2019.11
Plaintiff filed her original petition in the 139th Judicial District for Hidalgo County, Texas, on February 20, 2019.12 Plaintiff brought claims for gender discrimination, retaliation, disparate treatment, hostile work environment, constructive discharge, employer liability and negligence, and intentional infliction of emotional distress.13 Defendant filed an answer in state court on March 18, 2019,14 then removed to this Court on March 19, 2019.15 Although Plaintiff originally disclaimed any federal cause of action in state court,16 Plaintiff now asserts this Court has federal question jurisdiction under 28 U.S.C. §§ 1331 and 1441 because Plaintiff has brought causes of action under Title VII of the Civil Rights Act of 1964 and the Civil Rights Act of1991.17 Neither party contests jurisdiction. The Court finds that it has jurisdiction over this case pursuant to 28 U.S.C. §§ 1331 and 1441 and will exercise supplementary jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367.
On May 20, 2019, the parties appeared for an initial pretrial and scheduling conference before this Court. The Court granted Plaintiff leave to file a first amended complaint.18 Plaintiff filed her first amended complaint in compliance with the Court's deadline on May 31, 2019,19 and Defendant moved to dismiss the first amended complaint on June 14, 2019.20 In light of Plaintiff's failure to respond to Defendant's motion, Defendant filed a supplementary motion on October 7, 2019, requesting a favorable ruling on Defendant's motion to dismiss.21 However, on October 16, 2019, Plaintiff filed the instant unopposed motion requesting an extension of time to file Plaintiff's response to Defendant's motion to dismiss.22 Plaintiff also seeks leave to file a second amended complaint.23
The Court first turns to Plaintiff's motion for extension of time to respond to Defendant's motion to dismiss. Plaintiff seeks "leave of Court pursuant to Rule 60 of the Federal Rules of Civil Procedure,"24 but that Rule governs relief from a Court judgment or order.25 Responses to motions are due on or before the 21st day after the motion is filed pursuant to Local Rule 7.4(A);such motions are not required by a "final judgment, order, or proceeding."26 Therefore, Rule 60 is inapposite. Nevertheless, Plaintiff attached an affidavit of her counsel's "Paralegal / Docket Clerk" that explains the clerk's misunderstanding of this Court's Local Rules and subsequent mistaken failure to appropriately calendar deadlines.27 As a result, the "calendaring error . . . was not discovered until October 7, 2019, when Defendant's counsel filed their Motion for Ruling."28 Plaintiff then promptly moved for an extension of time on October 16 and filed her response to the motion to dismiss on October 23. The Court finds that the error was a venial mistake and that good cause exists for granting the extension of time. The Court GRANTS the unopposed extension of time to respond and will consider Plaintiff's response to the motion to dismiss and Defendant's reply. However, the Court reminds counsel that counsel is responsible for proper calendaring of all deadlines.
Before the Court can assess Defendant's motion to dismiss, the Court must first turn to Plaintiff's motion for leave to amend because such will determine the operative pleading underlying the motion to dismiss. After the 21-day deadline from service of a pleading for amendments as a matter of course, "a party may amend its pleading only with the opposing party's written consent or the court's leave."29 The First Amended Complaint was filed on May 31, 2019.30 Plaintiff's opposed request for leave to file her second amended complaint31 was after the 21-day deadline and so requires the Court's leave. "Leave to amend is in no way automatic, but the district court must possess a substantial reason to deny a party's request for leave to amend."32 In determining whether to allow leave to amend a pleading, courts examine whetherthere is (1) undue delay; (2) bad faith or dilatory motive; (3) repeated failure to cure deficiencies by previous amendments; (4) undue prejudice to the opposing party; and (5) futility of the amendment.33 As to the fifth factor, the Fifth Circuit has held that that courts 34 Absent such factors, the Court should freely grant the requested leave.35 Nonetheless, the decision whether to grant leave to amend lies within the Court's sound discretion.36 "At some point a court must decide that a plaintiff has had a fair opportunity to make his case; if, after that time, a cause of action has not been established," this Court will dismiss the suit.37
Analyzing whether to grant Plaintiff leave to file her second amended complaint38 depends partly on the possible futility of amendment and whether Plaintiff has failed to cure deficiencies in her proposed second amended complaint. Plaintiff seeks leave to amend to "addres[s] the defincies [sic] of the Plaintiff's First Amended Complaint as detailed in Defendant's 12(b)(6) Motion to Dismiss,"39 and submits that "Plaintiff's Second Amended Complaint should not be dismissed under Fed. R. Civ. Proc. 12(b)(6)."40 Plaintiff's counsel is admonished that the Court has not granted leave to file the second amended complaint and that Defendant's motion to dismiss is addressed to the first amended complaint, which is the operative pleading. Nevertheless, in analyzing the motion to dismiss, the Court also considersPlaintiff's proposed second amended complaint in order to determine whether the second amended complaint states a claim for relief and whether amendment would be futile.41
Defendant has moved to dismiss Plaintiff's first amended complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).42 "To pass muster under Rule 12(b)(6), [a] complaint must have contained enough facts to state a claim to relief that is plausible on its face."43 The Court accepts all well-pleaded facts as true and views those facts in the light most favorable to the plaintiff, but will not strain to find inferences favorable to the plaintiff.44 A plaintiff need not plead detailed factual allegations, but must plead more than "'naked assertion[s] devoid of 'further factual enhancement'" or "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements" to survive a motion to dismiss.45 The complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'"46 Courts first disregard any conclusory allegations as not entitled to the assumption of truth,47 and then undertake the "context-specific" task, drawing on judicial experience and common sense, of determining whether the remaining well-pled allegations give rise to entitlement to relief.48 The standard is only "to determine whether the plaintiff has stated a legally cognizable claim that is plausible, not to evaluate the plaintiff's likelihood of success."49 In other words, a complaint must plead facts that "nudge" the claims "across the line fromconceivable to plausible."50 The Court is limited to assessing only the complaint, its proper attachments, documents incorporated into the complaint by reference, and matters of which the Court may take judicial notice.51
As to any questions of state law, this Court, Erie-bound, must adhere to grounds of relief authorized by the state law of Texas.52 Absent a decision by Texas's highest tribunal, the decisions by Texas Courts of Appeals control "unless [the Court] is convinced by other persuasive data that the highest court of the state would decide otherwise."53
Plaintiff brings claims for gender discrimination, retaliation, disparate treatment,...
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